Custer chronicle. [volume] (Custer City, Black Hills, D.T. [S.D.]) 1880-1890, 1887-01-15
Judge Shiras Decides Some Questions IN
der the Prnhihitnrv Law

Judge Shiras Decides Some Questions un-
der the Prohibitory Law.
DUBUQUE, Iowa, Jan. 6.--An important
case has just been decided by Judge Shiras In
the case of Kohn & Heller vs.. C.. ii. Metchcr.
The plaintiffs are wholesale liquor dealers ut
Rock Island, H., and the defendant ia a
druggist AT Atlantic, Iowa. The plaintiffs
have suen for 81 900 on account. The defense
set up the plea that the plaintiff violated tie
laws Of Iowa in that the plaintiffs are not au-
thorized under the laws of Iowa TO sell liquors
for any purpose. A counter claim is made
10y the defendant to recover back moneys
paid the plaintiffs FOR liquors purchased since
the prohibitory law went into effect, the
claim being made under section 1850 Of the
Code Of Iowa. The plaintiffs demur, claim
ing that the above section declaring them
from this selling was in violation Of the con.
s~titution OF the United States. In the
course Of his decision Judge Shirss said
IAN impartial examination Of the several
eral sections of the statutes Of Iowa on the
subject Of the sale of liquor for legal pur-
poses, shows that the restrictions complained
OF were adopted, not for the purpose OF secur-
ing an undue advantage TO the citizens Of the
state, but for the purpose OF preventing vio-
l%ations Of the prohibitory laws of the state,
and although in effect the citizens Of other
states, as well as the larger part of the citi-
zens of Iowa, are debarred from selling in
low liquors to be rcsold for legal purposes,
and in that sense between the
states may be affected, yet this is but an Incl
dental result, and not a violation Of the fed
eral constitution, and being therefore valid,
il follows that a sale OF intoxicating liquors
made in Iowa, for any purpose, by a person
not holding a permit TO sell, is unlawful, and
no action can he maintained TO recover the
price Of such liquors. The demurrer to the
answer is therefore overruled.
'In cases where the. liquors are sold 10 b,
used for legal purposes TO a person having the
right TO sell the same, the yendee receives
from the vender something having, in his
hands, a legal as well as actual value. y
4 The inhibition applies 10 the person,
and not the property. The plaintiff not hav'
ing the legal right TO sell, could not make q
legal contract OF sale in Iowa, and hence
coming into iowa TO seek a recovery for The
liquors sold, he cannot maintain the action,
because he cannot show q legal contract with
the defendant"
"The wan OF a permit rendered the vender
legally incompetent to make a valid contract
Of sale, but he did not de-
liver the goods for the purpose Of aiding
the yendee in using or selling the same
for any purpose forbidden by the law Of Iowa,
and he is not therefore open to the charge OF
attempting to introduce liquors into Iowa tC
be used as a beverage, which use it is the sole
purpose OF the prohibitory law to prevent. He
had delivered to the vendee liG,ors, which
had a legal and actual value, in Iowa, in the
hands OF the yendce, to be used for Law fu
purposes. The contract Of sale he could moi
enforce in Iowa, but did the invalidity Of the
contract, caused by lack OF 8
permit to sell on the part Of the ven
dor, so far destroy his right In the liquor
that he could not lawfully receive pay
ment therefore, voluntarily made a Illinois
II he could lawfully receive payment certainly
the amount paid can not be recovered back II
an action brought by the payer.
Understanding that the counsel propos,
carrying the constitutional question present
ed by the demurrer to the answer to the cour'
Of final result, il would seem best to have al
the questions in The case decided at once, anC
to that end the demurrer to tie counter CLAIM
win be sustained.